On December 30, the United States Court of Appeals for the Eleventh Circuit handed down a major opinion in in Adams v. School Board of St. Johns County, Florida. The court ruled 7-4 against a statutory and constitutional challenge of a transgender student to a district policy requiring students to use bathrooms corresponding to their biological sex. Given the countervailing decision of the Fourth Circuit in G.G. v. Gloucester County, there is now a conflict in the circuits that could prompt a Supreme Court review. The Court expressly stated that it was not ruling on this question in its 2020 decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020).
Adams brought the challenge under the Equal Protection Clause of the Fourteenth Amendment, U.S. Const. amend. XIV, § 1, and Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq.
Judge Barbara Lagoa wrote the majority opinion, which was joined by Chief Judge Bill Pryor and Judges Newsom, Branch, Grant, Luck, and Brasher. Judges Wilson, Jordan, Rosenbaum, and Jill Pryor each wrote dissenting opinions.
The court reversed the decision of the United States District Court for the Middle District of Florida. Judge Timothy Corrigan enjoined the policy and awarded $1,000 in compensation to Adams. Corrigan’s decision was particularly notable in his interpretation of the word “sex” under Title IX, which the Eleventh Circuit ultimately rejected (as discussed below).
What happened next was interesting. A divided appellate panel affirmed the district court over a dissent from Chief Judge Pryor. Adams ex rel. Kesper v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1292 (11th Cir. 2020). The Court then explained:
“After a member of this Court withheld the mandate, the panel majority sua sponte withdrew its initial opinion and issued a revised opinion, again affirming the district court over a revised dissent but on grounds that were neither substantively discussed in the initial panel opinion nor substantively made by any party before the district court or this Court.2 Adams ex rel. Kesper v. Sch. Bd. of St. Johns Cnty., 3 F.4th 1299, 1303–04 (11th Cir. 2021); id. at 1321 (Pryor, C.J., dissenting). We then granted the School Board’s petition for rehearing en banc and vacated the panel’s revised opinion. Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 9 F.4th 1369, 1372 (11th Cir. 2021).”
Judge Lagoa begins the majority opinion by describing the dispute as involving “the unremarkable—and nearly universal—practice of separating school bathrooms based on biological sex.” In analyzing the “straightforward” claims, Lagoa laid out the facts and holding:
“Adams, who identifies as a male, argues that the policy violates Adams’s rights because, as a transgender student, Adams cannot use the bathroom that corresponds to the sex with which Adams identifies. Which is to say, Adams argues that by facially discriminating between the two sexes, the School Board’s bathroom policy also necessarily discriminates against transgender students. We disagree with Adams’s theory that separation of bathrooms on the basis of biological sex necessarily discriminates against transgender students.”
On the Equal Protection question, the court ruled that intermediate scrutiny applies to the case and that the district needs only show that the policy (1) advances an important governmental objective and (2) is substantially related to that objective. Miss. Univ. for Women, 458 U.S. at 724. The court found both criteria satisfied because the policy
“is clearly related to—indeed, is almost a mirror of—its objective of protecting the privacy interests of students to use the bathroom away from the opposite sex and to shield their bodies from the opposite sex in the bathroom, which, like a locker room or shower facility, is one of the spaces in a school where such bodily exposure is most likely to occur.”
On the Title IX issue, the court held that the statute allows schools to provide separate bathrooms on the basis of biological sex.
“That is exactly what the School Board has done in this case; it has provided separate bathrooms for each of the biological sexes. And to accommodate transgender students, the School Board has provided single-stall, sex-neutral bathrooms, which Title IX neither requires nor prohibits. Nothing about this bathroom policy violates Title IX. Moreover, under the Spending Clause’s clear-statement rule, the term “sex,” as used within Title IX, must unambiguously mean something other than biological sex—which it does not—in order to conclude that the School Board violated Title IX. The district court’s contrary conclusion is not supported by the plain and ordinary meaning of the word “sex” and provides ample support for subsequent litigants to transform schools’ living facilities, locker rooms, showers, and sports teams into sex-neutral areas and activities. Whether Title IX should be amended to equate “gender identity” and “transgender status” with “sex” should be left to Congress—not the courts.”
Judge Lagoa went further in a separate concurrence:
Affirming the district court’s order and adopting Adams’s definition of “sex” under Title IX to include “gender identity” or “transgender status” would have had repercussions far beyond the bathroom door. There simply is no limiting principle to cabin that definition of “sex” to the regulatory carve-out for bathrooms under Title IX, as opposed to the regulatory carve-out for sports or, for that matter, to the statutory and regulatory carve-outs for living facilities, showers, and locker rooms. And a definition of “sex” beyond “biological sex” would not only cut against the vast weight of drafting-era dictionary definitions and the Spending Clause’s clear-statement rule but would also force female student athletes “to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female.” Id. at 1779–80. Such a proposition—i.e., commingling both biological sexes in the realm of female athletics—would “threaten[] to undermine one of [Title IX’s] major achievements, giving young women an equal opportunity to participate in sports.” Id. at 1779.
Judge Jordan takes issue with the analysis and, while agreeing that intermediate scrutiny applies, finds a clear violation of the Constitution, noting an inherent contradiction in the policy:
“The School Board did not allow Drew Adams, a transgender student, to use the boys’ bathroom. As explained below, however, the School Board’s policy allows a transgender student just like Drew to use the boys’ bathroom if he enrolls after transition with documents listing him as male. Because such a student poses the same claimed safety and privacy concerns as Drew, the School Board’s bathroom policy can only be justified by administrative convenience. And when intermediate scrutiny applies, administrative convenience is an insufficient justification for a gender-based classification.”
Judge Wilson attacked the medical claims of the district in a separate dissent and suggests that it is based on the indeterminacy of gender at birth:
“Underlying this sex-assigned-at-matriculation bathroom policy, however, is the presumption that biological sex is accurately determinable at birth and that it is a static or permanent biological determination. In other words, the policy presumes it does not need to accept amended documentation because a student’s sex does not change. This presumption is both medically and scientifically flawed. After considering a more scientific and medical perspective on biological sex, it is clear that the bathroom policy’s refusal to accept updated medical documentation is discriminatory on the basis of sex.”
In her dissent, Judge Jill Pryor rejected the accommodation of a gender neutral bathroom:
Each time teenager Andrew Adams needed to use the bathroom at his school, Allen D. Nease High School, he was forced to endure a stigmatizing and humiliating walk of shame—past the boys’ bathrooms and into a single-stall “gender neutral” bathroom. The experience left him feeling unworthy, like “something that needs to be put away.” The reason he was prevented from using the boys’ bathroom like other boys? He is a transgender boy.
…
To start, the majority opinion simply declares—without any basis—that a person’s “biological sex” is comprised solely of chromosomal structure and birth-assigned sex. So, the majority opinion concludes, a person’s gender identity has no bearing on this case about equal protection for a transgender boy. The majority opinion does so in disregard of the record evidence—evidence the majority does not contest—which demonstrates that gender identity is an immutable, biological component of a person’s sex.”
It is a fascinating set of opinions (which also includes a dissent from Judge Rosenbaum). With the conflict with the Fourth Circuit, it would make for an ideal basis for the Court to consider the constitutional and statutory issues by granting a petition for writ of certiorari.
The accommodation of the gender neutral bathroom makes this policy particularly interesting for review. While some would argue that this amounts to a gender version of “separation but equal,” the district sought a middle position on the controversy. However, much turns on the definition of “sex” under Title IX.
Adams and others relied upon the Supreme Court’s recent decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020). That case involved employment discrimination under Title VII of the Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C. § 2000e et seq, and Justice Neil Gorsuch wrote in the 6-3 decision that it is impossible to discriminate against a person based on their sexual orientation or gender identity without discriminating based on sex. (Justices Thomas, Alito, and Kavanaugh dissented).
However, the Court expressly stated that it was not ruling on this issue:
“Under Title VII, . . . we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.”
The Biden Administration, however, has issued a Notice of Interpretation through the U.S. Department of Education’s Office for Civil Rights that it will enforce Title IX’s prohibition on discrimination on the basis of sex to include: (1) discrimination based on sexual orientation; and (2) discrimination based on gender identity.
Here is the opinion: Adams v. School Board of St. Johns County, Florida